In the Working RE article Appraiser Wins Copyright Suit: Now What?
“Tim Vining, MAI becomes the first appraiser in the U.S. to successfully sue and win for copyright infringement of his intellectual property his appraisal.
The culprit is a real estate broker who lifted Vining’s work for use in a sales brochure. According to Vining, who specializes in the appraisal of agricultural properties in Washington State, this was not the first time he found his work in reports that he did not author and for which he was not paid. This time he decided to do something about it.
What does this mean for the average appraiser? Firstly, this case means that appraisal reports can be copyrighted. It is easier to prove in a narrative format than on a form but it is possible.
What is very interesting is that the copyright fee does not have to be registered “to prove infringement and win an award.”
Statutory damages were not awarded in this case because “he had not registered his work with the Copyright Office within 90 days of creation. If a work is registered ($35 fee), statutory damages can be as high as $150,000 per occurrence plus attorneys fees and costs. “
Creative work, including appraisal reports, is
protected at the moment of creation.
The article speculates that this would have an impact on AVMs if appraisers would register some of their reports with the Copyrright Office by “poisoning the well.” AVM’s would not know which data was protected.
This is a curious point for me as it relates to form reports that are farmed for their data without compensation. How would the appraiser be able to track this misuse or prove it was their data?
One of the long running issues on this topic has been whether the appraiser owns the data or not. I would conclude that once raw information is improved beyond what is available to the public, the appraiser owns the rights to the data. However, they give up certain rights to the data once they place it on an appraisal report and send it to a client. If the appraiser knows the their data is being farmed (nearly all appraisal data is being farmed or will be shortly), then I am not sure how the argument can be made that they have not given up their rights to it. However, this is unclear to me.
From my own experience, I am more concerned others copying the content that I have developed, not simply the data. I have had several incidents regarding plagiarism of my report presentation.
The first time this happened, it involved a market report that I write about the market I cover. Another firm (a brokerage firm), copied every single line of text in the report and just changed the names. I called them and sent them a note and got not response but they changed the content of their report gradually over subsequent issues.
On another occasion, I was asked to review an appraisal report in a matrimonial action that was completed for both parties. Once side was uncomfortable with the result and showed me the report. When I got to the addendum, I discovered that the appraiser had copied my 8 page addenda word for word, even using the same fonts and layout. The attorney relayed this information to the court and the appraisal report was thrown out. I was then hired by the court to perform the valuation. I sent the appraiser a “cease and desist” letter with the instruction that I was to get a written apology and assurances that it would not happen again. He did. So far he hasn’t.
Shortly after this incident, I ran across my work in another appraiser’s report and was going to contact him in the same manner. Before I called my attorney, I read that he was indicted along with a number of others for mortgage fraud. I believe he is now in jail.
A few years ago, my wife was reading our hometown paper and she called me at the office to tell me that it was my writing with the data changed. We contacted this company and they changed the format of their report but it still contains elements of my original work. I decided not to go after the broker since it was not in a market that I covered.
Someone once told me this quote, of which I scoffed at:
There is no such thing as original thought.
I am starting to believe this.
Tags: Appraisal Process, Mortgage Fraud, Soapbox Blog